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Retired judges urge Congress to retain habeas jurisdiction for Guantanamo detainees

[JURIST] Nine former federal judges sent a letter [PDF text] to Congress on Thursday raising concerns about a provision in the proposed Military Commissions Act of 2006 [JURIST report] that, according to the judges, would "strip the federal courts of jurisdiction to test the lawfulness of Executive detention at the Guantanamo Bay Naval Station and elsewhere outside the United States." According to the letter:

We applaud Congress for taking action establishing procedures to try individuals for war crimes and, in particular, Senator Warner, Senator Graham, and others for ensuring that those procedures prohibit the use of secret evidence and evidence gained by coercion. Revoking habeas corpus, however, creates the perverse incentive of allowing individuals to be detained indefinitely on that very basis by stripping the federal courts of their historic inquiry into the lawfulness of a prisoner's confinement.
Calling a judge's consideration of a habeas petition "momentous because it safeguards the most hallowed judicial role in our constitutional democracy - ensuring that no man is imprisoned unlawfully" the judges dismissed the argument that the habeas provision is necessary to protect national security and noted that "depriving the courts of habeas jurisdiction will jeopardize the Judiciary's ability to ensure that Executive detentions are not grounded on torture or other abuse."

The judges concluded:
Finally, eliminating habeas jurisdiction would raise serious concerns under the Suspension Clause of the Constitution. The writ has been suspended only four times in our Nation's history, and never under circumstances like the present. Congress cannot suspend the writ at will, even during wartime, but only in "Cases of Rebellion or Invasion [when] the public Safety may require it." U.S. Const. art. I 9, cl. 2. Congress would thus be skating on thin constitutional ice in depriving the federal courts of their power to hear the cases of Guantanamo detainees. At a minimum, Section 6 would guarantee that these cases would be mired in protracted litigation for years to come. If one goal of the provision is to bring these cases to a speedy conclusion, we can assure you from our considerable experience that eliminating habeas would be counterproductive.

For two hundred years, the federal judiciary has maintained Chief Justice Marshall's solemn admonition that ours is a government of laws, and not of men. The proposed legislation imperils this proud history by abandoning the Great Writ to the siren call of military necessity. We urge you to remove the provision stripping habeas jurisdiction from the proposed Military Commissions Act of 2006 and to reject any legislation that deprives the federal courts of habeas jurisdiction over pending Guantanamo detainee cases.
The Senate Armed Services Committee [official website] voted [JURIST report] Thursday to send a bill authorizing military commissions [text, PDF; JURIST report] drafted by Republican Senators John Warner, Lindsey Graham and John McCain to the full Senate for consideration instead of a version from the White House [text, PDF; White House fact sheet] that would allow classified evidence to be withheld from defendants and would limit prisoners' rights guaranteed by the Geneva Conventions [ICRC materials]. AP has more.

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